: The Blawgraphy
Life of a Law Student, University of Houston Law Center

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Marc Dreier on 60 Minutes, Lawyer Convicted of Large-Scale Fraud, Discussing the Seeds of His Career’s Destruction

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See also WSJ’s Postgaming Marc Dreier’s Performance on ’60 Minutes’ Read the rest of this entry »

Take Down Request Fail: A Guinness World Record in Unintended Consequences of Threatening Legal Action

Although not necessarily covered in law school, I think we all realize at some point that there is a difference between a legal right and a legal objective. An objective is what you want, a right is what you point at to justify your demand. The two do not always go hand in hand.

I propose that every lawyer who has occasion to send a take down notice on behalf of his or her client create a checklist and at the top of that checklist put “Will invoking this legal right meet my client’s objective?”

Consider the following scenario:

  • You represent Guinness, who in addition to making a mighty good pint, happens to publish the best-selling copyrighted series of all-time, the Guinness Book of World Records.
  • A bit of a gaff is made on the Guinness World Records website – below each record a link entitled “Break this Record” is programmed to appear below a description of the records described on the site, a clever promotion to encourage other record-breaking feats. Not so clever however, when it appears below the record for “Most Individuals Killed In A Terrorist Act”.
  • The Failblog picks up on the gaff and makes fun of it on their website. They include a screenshot of the website.
  • You notice that the screenshot of the website includes the copyrighted logo of the Guinness brand. Intellectual property law gives you the right to demand that others not use your trademarked/copyrighted material, subject to some exceptions for fair use, etc.
  • Choose your own adventure…

So intellectual property law gives you a legal right. Should you use it? It depends on your objectives doesn’t it? Possible objectives include:

  1. Assuring the record-book-buying public that your client does not in fact mean incite terrorism.
  2. Ensuring that the incident does not further damage your client’s brand by making sure that the incident goes away quietly and quickly.
  3. Making an ass out of yourself and out of your client.

I’m not so sure that last one was actually contemplated by the parties but that seems to be the most obvious result of their chosen course of action, so let’s assume rationality. You sent a fairly standard take down request asserting your trademark rights and giving them a week to remove the offending material. You got this in response: Failblog: OMG U FAIL SO HARD. Could you not see it coming? Did it achieve any of your objectives, other than bringing more shame and notoriety on your client by making them a poster child of cyber-bullying-by-lawyer? Did you not assure that the incident gets even more attention than it otherwise (and justifiably) has?

Private Information in Public Places

Above the Law had an interesting post on the intersection of confidentiality, bluetooth ear-pieces and the economic downturn. In A Funny Thing Happened on the Way to New York, passengers on the train from D.C. to New York, including a law student tipster got an earful a firms layoff plans from an indiscreet partner on a bluetooth headset.

This afternoon I boarded a train from Washington bound for Penn Station…. I, along with all of the other passengers, were sitting quietly when the man directly behind me decided to make a phone call using his bluetooth. He was talking so loudly that I think most people in the car were able to hear him.

His conversation, though he stressed how necessary it was to be kept secret (ah, the irony), detailed the current plans of Pillsbury to lay off somewhere in the range of 15-20 attorneys from four offices by the end of March, including a few senior associates with low billable hours and two or three first-year associates. I wouldn’t have believed it except for the fact that he identified himself to the call as Bob Robbins, who I learned is the leader of the firm’s Corporate & Securities practice section, and was talking to Rick Donaldson, who I learned was COO. What’s more, he was NAMING NAMES over the phone!

The Recorder caught up with the firm to confirm the story in Pillsbury Confirms Layoff Leak.

“We apologize for the unfortunate manner in which our deliberations about reductions have become public,” Pillsbury said in a statement issued Thursday morning.

The story offered some disturbing observations on a culture of loose lips among lawyers:

Firms are increasingly wary of the instant flow of information made possible by blogs, which are more receptive to anonymous information than traditional media. “Most firms assume that any communications they make internally, particular to associates, will get on a blog, and they try to tailor those communications accordingly,” said Newport Beach, Calif.-based consultant Peter Zeughauser.

Comments posted below blog stories often reveal confidential information as well. By the end of the day, more than 300 comments were logged on the ATL story, with one poster claiming to be a Pillsbury associate who had been told to leave by the end of March and wasn’t offered severance. Pillsbury declined to discuss layoff decisions beyond its statement.

Loose lips sink ships. Lawyers are natural communicators and information purveyors, but they’re also often entrusted with sensitive and confidential information, and being cognizant those limits is a skill worth developing early.

Portraits in Hubris: You Can Lead a Lawyer to Ethics, Can You Make Them Drink?

Jim Chen at MoneyLaw and Scott Greenfield at Simple Justice each posted on the meaning of the separate but oddly serendipitous indictments of Illinois governor Rod Blagojevich, investment mogul Bernard Madoff and New York lawyer Marc Dreier. Each of the three had some brush with law school and would presumably have been admonished, at some point, of the unique power and responsibility placed on lawyers in our society. They seem to have missed the memo.

I took the obligatory course in Professional Responsibility last spring, an experience I can only describe as an exercise in competitive piety. I remember Greenfield once aptly describing the hypothetical ethics game we play in law school as screw the lawyer. I have posted here previously on what it takes to pass the MPRE and it doesn’t involve much of a moral compass.

In middle school, one of my social studies teachers, Kevin Sipe, devised an adaptation of the ethical coercion experiments of Milgram and Zimbardo. I forget exactly how it was implemented, but I’ve never forgotten the lesson – my own moral fortitude is never to be entirely trusted and must be continually tested. Ethics classes, by their very reason for being, are too often allowed to be celebrations of a cheaply-bought ethical infallibility that doesn’t exist. My instinct is that being overly convinced of our own morality is the surest way to lose it.

Consider the rapid descent of each of these men. Were they plucked out of obscurity by these scandals? Of course not, each was celebrated in his own right before being unmasked. A mountain of justifications paved the path they walked and each was reassured by their own sense of success and the reflection of it in those around them. The road to moral bankruptcy is lined with well-wishers. Standing on principle, as Jan Kemp’s story illustrates, is a very lonely act.

We are not learning how to behave ethically in law school, we are learning how to describe it. One takes a semester and the other takes a lifetime. We would do well not to confuse the two.

Texas Lawyers are Ready for Their (Ethics Committee) Close Up

Mary Alice Robbins features the haute couture of lawyer schlock, the YouTube spot, in the Texas Lawyer’s Internet Video Solicitations Need Ad Committee Review, Bar Says. I was planning on taking the opportunity to post a few of my favorites but they’ve scattered like prairie dogs. As of this writing a query against the YouTube database for “texas lawyer” yielded zero hits.

Kim Davey, the State Bar’s spokeswoman, says the Advertising Review Committee began noticing lawyers’ ads on YouTube and similar Web sites within the past six months to a year.

Wow, I guess they’ll be discovering facebook any year now.

Houston’s own Mark Bennett has a cameo –

Houston criminal-defense attorney Mark W. Bennett has broadcast several videos on YouTube since August 2007. But Bennett, a partner in Bennett & Bennett and president of the Harris County Criminal Lawyers Association, says he has not submitted his videos to the Advertising Review Committee. Bennett also says he has not received a letter from the committee reminding him to do so.

Bennett says he considers his YouTube videos to be commentary and informative for the public rather than a solicitation.

“I’ve never put up anything that says, “Hey, if somebody sees this, they will want to hire me,’ ” Bennett says.

One of the Bennett & Bennett videos features Bennett discussing how to avoid being arrested for driving while intoxicated when stopped by a police officer. The toll-free number of Bennett’s firm and its Web site address appear on the screen throughout the video.

Bennett says that before Texas Lawyer called, he had never given any thought to whether he should have submitted the videos to the Advertising Review Committee. But Bennett says he will submit the videos to the committee for review.

“It’s better to be safe than sorry when dealing with the Texas State Bar,” Bennett says. “It’s better to pay.”

But Bennett says he considers the fees charged for such reviews to be just “another money-maker for the State Bar.”

Alas the rules are begrudgingly clear – 7.07 Filing Requirements for Public Advertisements and Written Solicitations requires that

(a) Except as provided in paragraphs (c) and (e) of this Rule, a lawyer shall file with the Advertising Review Committee of the State Bar of Texas, no later than the mailing or sending by any means, including electronic, of a written, audio, audio-visual, digital or other electronic solicitation communication…

While we at the Blawgraphy prefer our First Amendment sunny side up, prior restraint of lawyer speech is a small price to pay for the hallowed and unbesmirched reputation of attorneys in the community as pillars of……. tact.

Only one clause truly gives me pause… lawyers shall provide with their submissions:

(3) a check or money order payable to the State Bar of Texas for the fee set by the Board of Directors. Such fee shall be for the sole purpose of defraying the expense of enforcing the rules related to such solicitations.

Which leads me to the truly frightening apprehension that somewhere in the dark recesses of the state bar offices a person sits in a lonely cubicle (chained to the desk?) whose sole professional occupation is the serious evaluation of lawyer advertisements on YouTube.

… the horror…. the horror….

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